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DIAETETAE

DIAETETAE (διαιτηταί),
arbitrators, umpires. The Diaetetae mentioned by the Athenian orators were
of two kinds: the one public and appointed by lot (κληρωτοί), the other private and chosen (αἱρετοί) by the parties who referred to them
the decision of a disputed point, instead of trying it before a court of
justice; the judgments of both, according to Aristotle, being founded on
equity rather than law (όγὰρδιαιτητὴςτὸἐπιεικὲςὁρθ̂ͅ, ὁδὲδικαστὴςτὸννόμον,Rhet. 1.13.19).

The institution of the public Diaetetae is placed by some modern writers in
the time of the orator Lysias; but they were in all probability of far
higher antiquity. So natural a mode of settling disputes, it is well argued
by Schömann and Perrot, could hardly fail to have been adopted in
the most primitive times. In the period for which we have more particular
information, a certain number of citizens, somewhat advanced in years--the
minimum age being fifty (Suidas, s. v. διαιτηταί), or, as Schömann inclines to believe, sixty
(Pollux, 8.126; Hesychius)--were appointed to serve as Diaetetae in such
cases as might arise. With respect to their numbers there is some
difficulty. The scholiast Ulpian states it at 440, i.c. 44 from each tribe (ἦσανδὲτέσσαρεςκὰτεσσαράκοντα[p. 1.621]καθ᾽ἑκαστὴνφυλήν,ad Dem. Mid. p. 542.86). This
number appears unnecessarily large; the orators often mention only one
arbitrator in each case; and an easy correction of Ulpian's words was
suggested--ἦσανδὲτεσσαράκοντα, τέσσαρεςκαθ᾽ἑκάστηνφυλήν--making the total number 40. Of late
years, however, an inscription has been discovered of about B.C. 325, naming
the Diaetetae who actually served in that year, and had been rewarded with a
garland for their conduct in office (first published in Ross, Demen
von Attika, p. 22; also in Rangabé‘s
collection, No. 1163). The numbers mentioned from the different tribes vary
between 16 in the Cecropis and 3 in the Pandionis, in all 104 names. If, as
is probably to be assumed, an equal number was chosen from each tribe, there
must have been at least 160 of them. The fact that not all the Diaetetae of
the year are commemorated in the inscription is easily explicable; those who
were most in request would be summoned oftenest, some perhaps not at all
(Schömann, Antiq. 1.472, E. T.; Perrot,
Essai, p. 292).

The inference, alike from the scholiast and the inscription, that each tribe
had its own Diaetetae, is further supported by Demosthenes (c.
Everg. p. 1142.12) and Lysias (c. Pancl. §
2). There is, however, no ground for the conjecture that they were chosen by
the members of each tribe for itself; or again, for a longer period than a
year. Like the dicasts, with whom they had much in common, and other
ἀρχαὶκληρωταί, they must have been
elected annually in the Ecclesia. A passage in Isaeus (δύοἔτητοῦδιαιτητοῦτὴνδίαιτανἔχοντος,pro Euphil. § 11, ed. Scheibe: printed as fr. 1 in older editions) has been thought to
indicate a longer tenure; we must suppose that it was sometimes necessary or
convenient to re-elect an arbitrator for the decision of a particular case.
The Diaetetae unquestionably, no less than the Heliastae, gave their
verdicts on oath. We read sometimes of their taking oaths previous to giving
judgment in the particular cases which came before them (Isae.
Dicaeog. § 32; Dem. c. Callipp.
p. 1244.30): and from this it has been inferred that no general oath was
exacted from them before they entered upon their duties. But Hudtwalcker,
Schömann, and Perrot all maintain that they took an oath of office
; it may have been a simpler and less solemn version of the Heliastic oath
given in Demosthenes. (c. Timocr. pp. 746-7; § § 149-151).

The Diaetetae of the different tribes appear to have sat in different
places,--as temples, halls, and courts of justice, if not wanted for other
purposes. Those of the Oeneid and Erechtheid tribes met in the heliaea (Dem.
c. Everg. p. 1142.12); we read of others holding a court
in the Delphinium (c. Boeot. ii. p. 1011.11; Isae. pro
Euphil. § 9), and also in the στοὰποικίλη (c. Steph. i. p. 1106.17).
Again, we are told of slaves being examined by the Diaetetae sitting for
that purpose, under the appellation of βασανισταί [TORMENTUM], in the Hephaisteion (Isocr. Trapez.
§ 15). Moreover, we are told of private arbitrators meeting in the
temple of Athena on the Acropolis; and, if the amended reading of Pollux
(8.126) is correct, we are informed by him, in general terms, that the
arbitrators formerly held their courts in the temples (Διήτωνἐνἱεροῖςπάλαι). Harpocration also (s. v.)
contrasts the dicasts with the arbitrators, observing that the former had
regularly appointed courts of justice (ἀποδεδειγμένα).

Another point of difference was the mode of payment, inasmuch as the dicasts
received a fee for each day's attendance at the public expense (the τριώβολον), whereas the only remuneration of the
Diaetetae was a drachma deposited by the plaintiff on lodgment of his
plaint, and one by the defendant on lodgment of his answer (ἀντωμοσία): the same sum was paid at every
ὑπωμοσία or application for
postponement by the party applying. This fee was called παράστασις, and is the same as the δραχμήτοῦλιπομαρτυπίου mentioned by
Demosthenes (c. Timoth. p. 1190.19). The defendant in this
case had failed to give evidence as he ought to have done, and therefore the
plaintiff commenced proceedings against him for this neglect, before the
arbitrators in the principal suit, the first step of which was the payment
of the παράστασις.

The public arbitrators were probably not ύπεύθυνοι in the technical sense of having to give an account
of their office before the Logistae [EUTHYNE]; but they were responsible in another way. Every one who
had, or fancied he had, a cause of complaint against them for their
decisions, might proceed against them by εἰσαγγελία, or information laid before the senate. For this
purpose, says Ulpian, whose statement is confirmed by Demosthenes (c.
Mid. p. 542.86) in the case of Straton, the public Diaetetae
were towards the close of their year of office, and during the latter days
of the month Thargelion, required to present themselves in some fixed place,
probably near the senate-house, that they might be ready to answer any
charge brought against them, of which they received a previous notice. The
punishment, in case of condemnation, was atimia, or
the loss of civic rights. According to Harpocration (s. v.), the εἰσαγγελία against the arbitrators was brought
before the dicasts or judges of the regular courts; but this probably
happened only on appeal, or in cases of great importance, inasmuch as the
βουλὴ could not inflict a greater
penalty than a fine of 500 drachmas with atimia.

As to the extent of the jurisdiction of the Diaetetae, Pollux (8.126) states,
that in former times no suit was brought into a court before it had been
investigated by the Diaetetae (πάλαιοὐδεμίαδίκηπρὶνἐπὶδιαιτητὰςἐλθεῖνεἰσήγετο). There can be but
little doubt that the word πάλαι here
refers to a time which was ancient with reference to the age of the Athenian
orators, and therefore that this previous investigation was no longer
requisite in the days of Demosthenes and his contemporaries. Still we find
the Diaetetae mentioned by them in very many cases of civil actions, and it
is not unlikely that the magistrates, whose duty it was to bring actions
into court (εἰσάγειν), encouraged the
process before the arbitrators, as a means of saving the state the payment
which would otherwise have been due to the dicasts. Hudtwalcker is
accordingly of opinion that the Diaetetae were competent to act in all cases
of civil actions for restitution or compensation, but not of penal or
criminal indictments (γραφαί), and,
moreover, that it rested with the complainant whether his cause was brought
before them in the first [p. 1.622]instance, or sent at once
to a higher court of judicature. (Dem. c. Androt. p. 601.26.)

But besides hearing cases of this sort the Diaetetae sat as commissioners of
inquiry on matters of fact which could not be conveniently examined in a
court of justice (Dem. c. Steph. p. 1106.17), just as what is
called an “issue” is sometimes directed by our own Court of
Chancery to an inferior court, for the purpose of trying a question of fact,
to be determined by a jury. Either party in a suit could demand or challenge
(προκαλεῖσθαι) an inquiry of this sort
before an arbitrator, the challenge being called πρόκλησις: a term which was also applied to the
“articles of agreement” by which the extent and object of
the inquiry were defined. (Dem. c. Neaer. p. 1387.124.) Many
instances of these προκλήσεις are found in
the orators; one of the most frequent is the demand or offer to examine by
torture a slave supposed to be cognisant of a matter in dispute, the damage
which might result to the owner of the slave being guaranteed by the party
who demanded the examination. (Harpocr. s. v. πρόκλησις.) See also Demosthenes (c. Onet. i.
p. 874.37), who observes that the testimony of a slave, elicited by torture,
was thought of more value by the Athenians than the evidence of freemen.
Another instance, somewhat similar to the last, was the πρόκλησιςεἰςμαρτυρίαν (Pollux, 8.62), where
a party proposed to his opponent that the decision of a disputed point
should be determined by the evidence of a third party. (Antiphon, de
Choreut. § 23.) Sometimes also we read of a πρόκλησις, by which a party was challenged to
allow the examination of documents; as wills (Dem. c. Steph.
p. 1104.8), deeds, bankers' books, &c. (c. Timoth. p.
1197.43). It is manifest that the forms and objects of a πρόκλησις would vary according to the matter in
dispute, and the evidence which was producible; we shall, therefore, content
ourselves with adding that the term was also used when a party challenged
his adversary to make his allegation under the sanction of an oath, or
offered to make his own statements under the same obligation. (Dem.
c. Apat. p. 896.14; c. Con. p. 1269.19.)
The presumption or prepossession which might arise from a voluntary oath in
the last case might be met by a similar πρόκλησις, tendered by the opposite party, to which the original
challenger appears to have had the option of consenting or not as he might
think proper. (Dem. c. Timoth. p. 1203.65; compare Arist.
Rhet. 1.15.29.) In all cases where any of these
investigations or depositions were made before the Diaetetae, we may
conclude with Hudtwalcker (p. 48), that they might be called as witnesses in
subsequent stages of the action, either to state the evidence they had
taken, or to produce the documents they had examined, and which were
deposited by them in an echinus. [APPELLATIO (Greek).]

The proceedings in the trials before the public arbitrators were of two
kinds: 1st, When two parties agreed by a regular contract to refer a matter
in dispute to a judge or judges selected from them.
2ndly, When a cause was brought before a public arbitrator, without any such
previous compromise, and in the regular course of law. The chief difference
seems to have been that, in case of a reference by contract between two
parties, the award was final, and no appeal could be brought before another
court, though the unsuccessful party might, in some instances, move for a
new trial (τὴνμὴοὖσανἀντιλαχεῖν,
Dem. c. Mid. p. 542.86). Except in this point, of non-appeal,
an arbitrator who was selected from the public Diaetetae by litigant parties
seems to have been subject to the same liabilities, and to have stood in the
same relation to those parties as an arbitrator appointed by lot: the course
of proceeding also appears to have been the same before both (Dem. c.
Mid. p. 541), an account of which is given below. There are
strong reasons in support of Hudtwalcker's opinion, that whenever a suitor
wished to bring an action before one or more of the public Diaetetae, he
applied to one of the many officers called εἰσαγωγεῖς (Dem. c. Lacrit. p. 940.47;
c. Pantaen. p. 976.33; Pollux, 8.93), whose duty it was
to bring the cause (εἰσάγειν) into a
proper court. By some such officer, at any rate, a requisite number of
arbitrators was allotted to the complainant; the statement of Harpocration
that they were always taken from the same tribe as the defendant is rejected
by Schömann as incapable of proof. Pollux (8.126) informs us that
if a Diaetetes refused to hear a cause, he might be punished with atimia: but it appears that under extraordinary
circumstances, and after hearing the case, a Diaetetes sometimes refused to
decide himself, and referred the parties to a court of justice (Dem.
c. Phorm. p. 913.21).

The process before the public Diaetetae was conducted in the following
manner. After complaint made, and payment of the παράστασις, the plaintiff supported his averment by an oath,
to the effect that his accusation was true, which the defendant met by a
like oath as to the matter of his defence. When the oath (ἀντωμοσία) had been thus taken by the parties,
the arbitrators entered upon the inquiry, heard witnesses, examined
documents, and held as many conferences (σύνοδοι) with the parties as might be necessary for the
settlement of the question. (See authorities, Hudtwalcker, p. 80.) The day
of pronouncing judgment (ἡἀπόφασιςτῆςδίκης, Dem. c. Everg. p. 1153.45) was probably
fixed by law, if we may judge from the name (ἡκυρία soil. ἡμέρα) by which it
is called in the orators; it might, however, with consent of both parties,
be postponed. The verdict given was countersigned by the proper authorities,
perhaps by the εἰσαγωγεῖς, and thereby
acquired its validity. The archons mentioned by Demosthenes (c.
Mid. p. 542.85) as having signed a judgment were probably
thesmothetae, as the action was a δίκηκακηγορίας, which is moreover called an ἀτίμητοςδέκαμνῶνδίκη, i. e. an action where the
plaintiff was not required to assess the damages (aestimarelitem), the penalty, in case of a verdict for him,
being determined by law: this alone is sufficient to prove that the
Diaetetae sometimes decided in cases where the plaintiff sued for damages,
as distinguished from those in which he sought restitution of rights or
property; nor, indeed, does there seem any reason for supposing that their
jurisdiction was not extended to the ἄγωνεςτιμητοί, or actions where the plaintiff was required to
assess or lay his damages, provided the assessment did not exceed some fixed
amount. In support of this opinion we may adduce the authority of Pollux
(8.127), [p. 1.623]who expressly states that the plaintiff
might assess his damages before the arbitrators, when the law did not do so
for him.

If the defendant were not present on the proper day to make his last defence,
judgment went against him by default (ἐρήμηνὦφλε), the arbitrator being obliged to wait till the evening
(ὀφὲἡμέρας, Dem. c.
Mid. p. 541.84; c. Timoth. p. 1190.19). Sometimes,
however, the time of pronouncing sentence was deferred in consequence of a
deposition (ὑπωμοσία, Pollux, 8.60;
Harpocr. s. v.) alleging a satisfactory cause for postponement, such as
sickness, absence from town, military service, or other reasons. To
substantiate these, the applicant, when possible, appeared personally; but
if a party was prevented from appearing on the day of trial, by any
unexpected event, the ὑπωμοσία might be
made on oath by authorised friends. (Dem. c. Olymp. p.
1174.25; Pollux, 8.56.) The ὑπωμοσία might
be met by a counter-statement (ἀνθυπωμοσία) from the opposite party affirming his belief that
the reasons alleged were fictitious or colourable. In connexion with this
point, we may observe that, according to Pollux (8.60), the motion for a new
trial could only be sustained in cases where the applicant had made a
ὑπωμοσία, and demurred either
personally or by proxy against the passing of judgment on the regular day.
Moreover, it was incumbent on the party who wished for a new trial to move
for it within ten days after judgment had been pronounced, and even then he
was obliged to take a kind of ὑπωμοσία, to
the effect that his absence on the proper day was involuntary. (Pollux,
8.60.) In default of compliance with these conditions, the previous sentence
was confirmed. (Dem. c. Mid. p. 542.86.) We are told also by
Photius (Lex. s. v. μὴοὖσαδίκη), that it was competent for plaintiff as well as
defendant to move for a new trial on the grounds we have mentioned. When it
was granted, the former verdict was set aside (ἡἐρήμηἐλύετο), and the parties went again before an
arbitrator, probably through the instrumentality of the εἰσαγωγεῖς, to whom application had been made
in the first instance. The process itself is called ἀντίληξις in Greek, and does not seem to have been confined
to trials before the Diaetetae: the corresponding term in Roman law is
restauratioeremodicii.

This, however, was not the only means of setting aside a judgment, inasmuch
as it might also be effected by an ἔφεσις,
or appeal to the higher courts [APPELLATIO (Greek)], and, if false evidence had been tendered, by
a δίκηκακοτεχνιῶν (Harpocr. s.v. Dem.
c. Timoth. p. 1201.56).

It remains to speak of the strictly private arbitrators, chosen by mutual
agreement between contending parties, and therefore generally distinguished
by the title αἱρετοί, of whom it must be
understood that they were not selected from the διαιτηταὶ of the tribes. The powers with which they were
invested, were, as we might suppose, not always the same; sometimes they
were merely διαλλακταί, or chosen to effect
a compromise or reconciliation: thus Isaeus (Dicaeog.
§ 32) speaks of arbitrators offering either to bring about a
reconciliation if they could, without taking an oath, or to make an award
(ἀποφαίνεσθαι) upon oath. Sometimes,
on the other hand, they were purely referees, and then their powers depended
upon the terms of the agreement of reference; if these powers were limited,
the arbitration was a δίαιταἐπὶῥητοῖς
(Isaeus, l.c.; Isocr. Trapez.
§ 19; c. Callim. § § 10, 14). The
agreement was not merely a verbal contract (stipulatio), but drawn up in writing (ἐπιτροπὴκατὰσυνθήκας, Dem. c. Phorm. p.
912.18), and signed by the parties; it fixed the number of referees
(generally three), determined how many unanimous votes were necessary for a
valid decision, and probably reserved or prohibited, as the case might be, a
right of appeal to other authorities. (Isocr. c. Callim.
§ 19; Dem. c. Apat. p. 897.15.)

If there were no limitations, these Diaetetae were then, so to speak,
arbitrators proper, according to the definition of Festus (p. 15, ed.
Müller):--“Arbiter dicitur judex, quod totius rei habeat
arbitrium et potestatem.” Moreover, no appeal could be brought
against their judgment (Dem. c. Mid. p. 545.94); though we
read of an instance of a party having persuaded his opponent to leave a
matter to the arbitration of three persons; and afterwards, when he found
they were likely to decide against himself, going before one of the public
arbitrators. (Dem. c. Aphob. p. 862, § §
58, 59.) We should, however, suppose that in this case there was no written
συνθήκη. The award was frequently given
under the sanction of an oath, and had the same force as the judgment which
proceeded from a court of law, so that it might be followed by a δίκηἐξούλης. (Dem. c. Callipp.
p. 1240.16.) We may add, that these private Diaetetae are spoken of as
sitting ἐντῷἱερῷ, ἐντῷἩφαιστείὼ, and that in some cases it was customary to give
notice of their appointment to the proper archon or magistrate (ἀποφέρεινπρὸςτὴνἀρχήν), who, as
Hudtwalcker suggests, may have acted as an εἰσαγωγεὺς in the case. (Dem. c. Callipp. p.
1244.30; c. Mid. p. 542.86.)

(Appendix). According to our
author (100.53), they were men of just sixty years of age, bound under the
penalty of atimia to serve in that capacity for the first year after their
superannuation from military service. Cf. below, low, App. s. v. EPONYMI.